United States District Court, D. Nevada
RICHARD A. TUALLI, Plaintiff(s),
EVERBANK, et al., Defendant(s).
before the court is defendant EverBank's motion to dismiss
plaintiff Richard Taulli's complaint under Federal Rule
of Civil Procedure 12(b)(6), (ECF No. 6). The motion to
dismiss is granted.
court accepts the following allegations in Taulli's
complaint as true, to the extent that they are
non-speculative and plausible, for the purposes of resolving
the pending motion to dismiss, see generally Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
case involves a foreclosure sale on Taulli's home caused
by his admitted delinquency in making his mortgage payments.
(See ECF No. 1-2 at 6 ¶ 15) (Taulli admitting
in his complaint, "[Taulli] being unable to make his
required payment. . ."). The real property in question
is located at 2808 Cowan Circle, Las Vegas, Nevada, 89107,
also known as APN 139-32-214-017. Taulli claims that the
subject home is his principal place of residence, which he
purchased with a note in the principal amount of $897, 600.
(Id. at 5).
he alleges that over the years of his mortgage payments, the
defendants had improperly serviced his loan and applied his
payments toward only the loan's interest, rather than
applying any amount toward the principal, yet the defendants
had misled him by leading him to believe that part of his
payments went towards his principal. (Id. at 6
¶¶ 17-18, 7 ¶ 29(b)). He also alleges that
before initiating foreclosure proceedings, defendants failed
to act in good faith in servicing his loan by failing to
comply with the federal Real Estate Settlement Procedures
Act, 12 U.S.C. § 2605(e) ("RESPA"), and the
regulations promulgated thereunder, and by "failing to
allow mediation or modification in good faith, as required
under Nevada and Federal law." (Id. at 7-8).
about April 19, 2017, Taulli sent defendant EverBank a
"qualified written request" pursuant to RESPA
requesting information about his loan. (Id.). On May
25, 2017, EverBank sent a letter to Taulli requesting more
time to respond. (Id.). On the same day, Taulli
received a notice of sale from defendant Trustee Corp,
setting the foreclosure sale for June 27, 2017. (Id.
claims that, as of the date of the complaint, EverBank has
yet to provide Taulli with the information he requested by
the qualified written request. (Id. at 7). Even if
EverBank provided Taulli that information now, Taulli claims
there would be insufficient time to "utilize the
information for any mediation or modification" before
the foreclosure. (Id.).
15, 2017, plaintiff Richard Taulli filed a complaint in
Nevada state court against defendants EverBank, Countrywide
Mortgage, Oaktree Funding, and Trustee Corps, bringing claims
relating to the defendants' allegedly improper servicing
and foreclosure on plaintiff s home mortgage. (ECF No. 1-2 at
14, 2017, defendant EverBank filed the instant motion to
dismiss. (ECF No. 6). Taulli responded. (ECF No. 11).
EverBank replied. (ECF No. 13).
August 14, 2017, Taulli filed an emergency motion for a
temporary restraining order. (ECF No. 12). On August 22,
2017, this court denied that motion because Taulli did not
supply this court with a verified complaint or sworn
affidavit demonstrating specific facts that show the need for
a TRO. (ECF No. 14). In essence, Taulli made bare allegations
without supporting evidence, which is especially troublesome
when asking the court to order ex parte relief.
the parties' last indication, the foreclosure of the
property at issue in this litigation was set for August 24,
2017. (ECF No. 14 at 1).
court now addresses EverBank's motion to dismiss
may dismiss a complaint for "failure to state a claim
upon which relief can be granted." Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide "[a]
short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands "more than labels and
conclusions" or a "formulaic recitation of the
elements of a cause of action." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level." Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to "state a claim to relief
that is plausible on its face." Iqbal, 556 U.S.
at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiffs complaint alleges facts that allow the court to
draw a reasonable inference that the defendant is liable for
the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
"alleged-but not shown-that the pleader is entitled to
relief." Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from conceivable to plausible, plaintiffs
claim must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court stated, in relevant
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
in resolving a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court cannot consider evidence or
matters outside of the pleadings or else "the motion
must be treated as one for summary judgment."
Fed.R.Civ.P. 12(d). However, certain written instruments may
be considered to be part of the pleading; even if a document
is not attached to the complaint, it may be incorporated by
reference into the complaint if the plaintiff refers
extensively to the document or the document forms the basis
of the plaintiffs claims. United States v. Ritchie,
342 F.3d 903, 908 (2003). In that situation, a court may
treat such a document as "part of the complaint, and
thus may assume that its contents are true for purposes of a
motion to dismiss under Rule 12(b)(6)." Id.
in resolving the present motion to dismiss, (ECF No. 6), this
court will exclude from its consideration all matters outside
the pleadings (see, e.g., ECF No. 12; ECF No. 1-2 at
16-26), but this court will consider the deed of trust and
its attachments found in exhibit 1 to the motion to dismiss
(ECF No. 6 at 8-29), and the notice of delinquency and intent
to sell found in exhibit 2 to the motion to dismiss (ECF No.
6 at 30-36), upon each of which Taulli's complaint relies
and implicitly incorporates.
alleges four claims against defendants: (1) contractual
breach of the implied covenant of good faith and fair
dealing, (2) tortious breach of the implied covenant of good
faith and fair dealing, (3) declaratory judgment, and (4)
injunctive relief. (ECF No. 1-2 at 7-11).
as a preliminary matter, a claim for declaratory relief
pursuant to the federal Declaratory Judgment Act, 28 U.S.C.
§ 2201, is merely a remedy and not an independent,
substantive cause of action. (ECF No. 6 at 7); see Stock
W., Inc. v. Confederated Tribes of the Colville
Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). The
same is true for a request for declaratory relief under
Nevada's Uniform Declaratory Judgment Act. See
Nev. Rev. Stat. § 30.030; Builders Ass'n of N.
Nevada v. City of Reno, 776 P.2d 1234, 1234 (Nev. 1989)
("The Uniform Declaratory Judgments Act does not
establish a new cause of action . . .").
a request for injunctive relief is also merely a remedy, not
an independent cause of action. (ECF No. 6 at 7); see
Tyler v. Am. Home Mortgage, No. 3:10-cv-00042, 2011 WL
5025234 at *6 (D. Nev. Oct. 21, 2011) (citing In re
Wal-Mart Wage & Hour Emp't Practices Litig., 490
F.Supp.2d 1091, 1130 (D. Nev. 2007)); see also Jensen v.
Quality Loan Service Corp.,702 F.Supp.2d 1183, 1201
(E.D. Cal. 2010) ("An injunction is a remedy, not a
separate claim or cause of action. A pleading can . ..
request injunctive ...